Mahjibhai Mohanbhai Barot Vs. Patel
Manibhai Gokalbhai & Ors [1964] INSC 289 (11 December 1964)
11/12/1964 SARKAR, A.K.
SARKAR, A.K.
SUBBARAO, K.
DAYAL, RAGHUBAR AYYANGAR, N. RAJAGOPALA
MUDHOLKAR, J.R.
CITATION: 1965 AIR 1477 1965 SCR (3) 436
CITATOR INFO:
R 1966 SC1194 (3)
ACT:
Code of Civil Procedure (Act 5 of 1908) s.
144-Application under if execution application.
Limitation Act (9 of 1908), Arts. 181 and
182-Scope of.
HEADNOTE:
The appellant filed a suit for recovery of
certain properties from the respondents. The suit was decreed by the trial
court The respondents appealed to the High Court, but pending the appeal, the
appellant, in execution of the decree of the trial court, obtained possession
of the suit properties and recovered the costs awarded. Only July 13, 1949, the
High Court set aside the decree of the trial court, and on August 24, 1950, the
appellate decree was amended by deleting the name of one of the decree-holders
from the decree. The respondents filed two applications one on February 11,
1953 for costs and the other on February 13, 1953 for restitution of the
properties and costs paid, under s. 144 of the Civil Procedure Code, 1908. The
trial court ordered execution to proceed and on appeal the High Court confirmed
the order. In the appeal to the Supreme Court, it was contended that: (i) the
application for recovery of costs was barred by limitation under art. 182 of
the Limitation Act, 1908, as it was filed beyond 3 years from the date of the
appellate decree and (ii) the application for restitution was not an
application for execution and was therefore governed by art. 181 of the
Limitation Act; and as the period of limitation of 3 years under that article,
starts from the date when the right to apply accrues the application for
restitution was also barred by limitation.
HELD (by Full Court): (i) The execution
application for the recovery of costs was within time. [439 E; 455 H] By the
amendment of August 24, 1950, the name of one of the decree-holders was struck
out from the decree and the result was, to that, extent, the rights of the
parties were modified by the amended decree. it was therefore. a case where the
decree has been amended within the meaning of art.
132(4) of the Limitation Act, and the
application for execution could be filed within 3 years from the date of the
amendment. [455 G] (ii) (Per Subba Rao, Raghubar Dayal, Rajagopal Ayyangar and
Mudholkar JJ.) : On a fair construction of the provisions of s. 144 of the
Code, an application for restitution must be held to be one for execution of a
decree, and having been filed within 3 years from the date of the amended
decree was within time. [455 B, H] Having regard to the history of the section,
there is no reason why such an application should not be treated as one for
execution of the appellate decree. The object of the section is to make the
scope of restitution clear and unambiguous. It does not say that an application
for restitution, which till the Code of 1908 was enacted was an application for
execution, should be treated as an original petition. Whether an application is
one for execution of a decree or in an original application depends upon the
nature of the application and the relief asked for. When a party, who lost his
property in execution of a decree, seeks to recover it back by 437 reason of
the appellate decree in his favour, he is not initiating any original
proceeding but is concerned only with the working out of the appellate decree
in his favour.
[450 E-H; 451 A] it would be inconsistent to
hold that an application for restitution would be an original petition, if the
appellate decree did not give a direction for restitution, and that it would be
an execution application if it did. Such an inconsistency could be avoided if a
direction for restitution were implied in every appellate decree setting aside
or modifying the decree of the lower court. [451 C-E] The existence of s. 47 in
the Code would make s. 144 redundant. The latter section was enacted to
prescribe the procedure, define the powers of the court and expressly bar the
maintainability of a suit in respect of a relief obtainable under it. [451 E,
G] The fact that the section has been placed in the "Miscellaneous"
part of the Code for convenience of arrangement, cannot affect the question if
in reality the application for restitution is one for execution : at the most
it is only one of the circumstances relevant to the enquiry and it is not
decisive. [452 D-E] Merely because, under s. 144, the application has to be
filed in "the court of first instance" and under s. 38, a decree may
be executed both by "the Court which passed if' or by "the court to
which it is sent for execution." an application under s. 144, does not
ease to be one for execution. For under s. 37, the expression "Court which
passed a decree" includes the "Court of first instance", when
the decree to be executed has been passed in the exercise of appellate
jurisdiction. [452 E-G] If an execution application to which s. 47 applies does
not cease to be an execution application by reason of the section being
included in the definition of a "decree" under a. 2(2), an execution
application under s. 144 cannot likewise cease to be one for the reason that
the said section is included in the definition of decree. The two sections were
included only for the purpose of giving a right of appeal. [453 C-D] To
construe an application for restitution as not one for execution would lead to
anomalies specially under ss. 6, 7 And 15 of the Lemitation Act. The existence
of anomalies may have no relevance when a provision of a statute is clear and
unambiguous, but will certainly have a bearing when the section is ambiguous.
Further, in a procedural matter pertaining to execution when a section yields
to two conflicting constructions, the court should adopt a construction which
maintains rather their disturbs the equilibrium in the field of execution. [453
H; 454 A, F] Per Sarkar J. (dissenting) : The application under s. 144 is not
one in execution and therefore would not be governed by art. 182 of the
Limitation Act but by art. 181. Since, under art. 181 time starts to Tun from
the date the right to apply accrues and the period provided is three years, the
application for restitution would be barred. [442 D-F] Apart from the fact that
the application is not described as one in execution the provision in the
section for the making of an order for the purpose of effecting restitution
would lead to the conclusion that it is this order that is to be executed for
obtaining restitution; and therefore the earlier application resulting in such
order, could not be one for execution. [440 D-E] if the application under s.
144 is one for execution, then the portion in the section that no suit shall be
instituted for the Purpose of obtaining restitution, and the inclusion of the
determination of a question under s. 144 within the definition of decree in s.
2(2) would be unnecessary because of s. 47. The latter ion which relates to
questions arising in 438 execution bars a suit to obtain the same relief, and
the determination of any question under that section is included within the
definition of decree. [440 F-H] Further, under a. 144, the application has to
be made to "the Court of first instance" and not to a transferee
court, whereas, under ss. 38 and 39 and OXXI, r. 10, the holder of a decree
desiring to execute it shall apply to the court to which the decree has been
sent for execution. [441 A-C] While the s. 583 of the Code of 1882, expressly
provided that restitution would be by way of execution, s. 144 of the Code of
1908, deliberately omits reference to execution.
This departure in the terminology used, would
tend to the view that it was intended that the procedure under the new section
would not be by way of execution. [441 F-G] If the language of the section by
itself clearly indicates that the procedure is not to be by way of execution,
it would not be legitimate to interpret the section in a different way because
of the deprivation of the benefits under ss. 6, 7 and 15 of the Limitation Act.
[442 B] It cannot be said that the right to apply for restitution accrued when
the appellate decree was amended, for under s.
9 of the Limitation Act, case began to run
from the date of the appellate decree, when the right to apply first accrued.
[442 H]
CIVIL APPELLATE JURISDICTION: CIVIL Appeals
Nos. 777 and 778 of 1964.
Appeals by special leave from the judgment
and order dated March 5, 1964 of the Gujarat High Court in First appeals Nos.
111 and 112 of 1960.
W. S. Barlingay and A. G. Ratitaparkhi, for
the appellant (in both the appeals).
I. N. Shroff, for the respondents 2 and 3.
Sarkar J. delivered a dissenting Opinion. The
Judgment of Subba Rao, Raghubar Dayal, Ayyangar and Mudholkar JJ. was delivered
by Subba Rao J.
Sarkar J. These appeals arise from two miscellaneous
applications made to the trial Court which was the Court of the Civil Judge,
Nadiad in the State of Gujarat. One of these applications was for execution of
orders for costs awarded and the other was under s. 144 of the Code of Civil
Procedure for restitution of money and property taken in execution of a decree
reversed in appeal. 'Me appellant is the successor-in-interest of the plaintiff
in the suit out of the proceedings of which these appeals arise and the
respondents were the defendants there.
The appellant's predecessor-in-interest had
filed the suit for possession of land against the respondents and another
person, now dead. The suit was decreed with costs by the trial Court on
November 30, 1945 but that decree was set aside on July 13, 1949 439 on appeal
by the defendants to the High Court of Bombay.
While the appeal was pending the appellant's
predecessor-ininterest had in execution of the decree of the trial Court
obtained possession of the land and realised the costs awarded. Also pending
the appeal the appellant's predecessor-in-interest having died, the appellant
was substituted in his place. After the appellate decree had been drawn up, it
was amended on August 24, 1950 by deleting the name of one of the appellants
mentioned therein, being one of the defendants to the suit, on the ground of
his death. The appellant got leave from this Court under Art.
136 of the Constitution to appeal from the
appellate decree but such leave was revoked on November 24, 1952 as the
appellant had failed to carry out the condition on which it had been granted.
Thereafter on February 1 1, 1 9 5 3, the respondents filed in the trial Court
the application for execution for recovering the costs awarded to them in the
proceedings up to the date of the revocation of leave by this Court and out of
this application one of the appeals has arisen. On February 13, 1953, they
filed the other application under s. 144 of the Code for restitution of the
land taken and the costs realised from them in execution of the decree of the
trial Court and out of this the other appeal has arisen. The only question
argued in each appeal is whether it is barred by limitation.
As regards the application for execution, I
agree with my learned brother Subba Rao that it is not barred by time and the
appeal arising from it, that is, appeal No. 777 of 1964 should be dismissed. On
this matter I, have nothing to add to what my learned brother has stated in his
judgment.
On the other application, namely, the
application for restitution under s. 144 of the Code, I have come to a
conclusion different from that of my learned brother. The question here also,
as I have already said, is whether the application had been made beyond the
time specified and was barred. The appellant, who was the defendant to that
application, contended that an application under s. 144 was not in execution
and would be governed by Art. 181 of the Limitation Act which covers
applications not specially provided for in the Schedule to that Act and not by
Art. 182 relating to execution. The respondents who wanted the restitution,
contended on the other hand that the case came under Art. 182 as the
application for it was really one in execution. Subject to certain questions
which I will later discuss, it is not in dispute that if Art. 181 applied, then
the application would be barred while it would not be so if the case was
governed by Art. 182.
Supp./65-12 440 The question, therefore, in
this appeal is whether an application under s. 144 is an application in
execution. On that question there has been a great divergence of opinion in the
High Courts. It would not be profitable to refer specifically to the reasons
given in these judgments in support of the views respectively adopted, for
these reasons will, in substance, all be discussed later. In my view, an
application under s. 144 is not one for execution and I proceed now to state my
reasons for that view.
I suppose our first task in deciding what
kind of application is contemplated in s. 144 is to look at its terms. On doing
so, I find that no reference to execution is made in it. It is not contained in
any chapter dealing with execution. It says that when a party becomes entitled
to restitution as a result of a decree being varied or reversed, the Court of
first instance shall, on his application, cause restitution to be made and for
this purpose the Court may the word "may" here clearly means
"shalt" make any orders that may be necessary. Apart from the fact
that the application is not described as one in execution, the provision for
the making of an order for the purpose of effecting restitution would lead to
the ,conclusion that it is this order which is to be executed for obtaining
restitution. The section obviously could not contemplate two applications for
execution, and therefore, the earlier application resulting in the order
mentioned in the section could not be one for execution. It seems to me
impossible, looking at the terms of the section alone -and without more, we
have no right to look at anything else to say that the application contemplated
in it is one in execution.
There are other reasons indicating that the
application contemplated by the section is not one for execution. Thus if the
application was in execution, then under s. 47 of the Code a suit to obtain the
same relief would be barred. It would then have been unnecessary to provide by
sub-s. (2) of s. 144 that no suit shall be instituted for the purpose of
obtaining restitution. Again turning to the definition of decree in S. 2,
sub-sec. (2), I find that it includes the determination of a question within s.
144. This provision would be wholly unnecessary if the determination of that
question was in execution proceedings for then the matter would be brought
within the definition of decree by that part of it which included in it the
determination of any question within s. 47 which section relates to questions
arising in execution.
Lastly, while s. 144 provides that the
application under it is to be made to "the Court of first instance",
s. 38 which occurs in 441 a part of the Code dealing with execution, states
that a decree may be executed either by "the Court which passed it or by
the Court to which it is sent for execution". Section 39 provides for a
transfer of a decree for execution to another Court and by virtue of Or. 21, r,
10, the holder of a decree desiring to execute it shall, if the decree has been
sent to another Court, apply to that Court. Under s. 144 however the
application had to be made to "the Court of first instance". The
section does not permit an application to be made to a transferee Court. This
again will indicate that it was riot intended that an application under s. 144
will be an application for execution. No doubt, the expression "Court of
first Instance" has to be interpreted in a general sense and would
include, where the Court of first instance has ceased to exist, a court which
then has jurisdiction over the territory in which the abolished Court
functioned. Such a view was taken in Panchapakesa Aiyar v. Natesa Pathar(l). This
however is a different matter.
It was said on behalf of the respondents that
s. 144 of the Code of 1908 was intended to replace the analogous provisions
contained in s. 583 of the preceding Code of 1882 and was in effect a
re-enactment of the earlier provision and, therefore, in construing s. 144 it
has to be considered in what way the earlier provision, namely, s. 583, was
defective which defects the new provision intended to rectify. It does not seem
to me that even this approach assists the contention that s. 144 contemplates
an application in execution. Section 583 expressly said that the restitution
was to be obtained by way of an execution.
While it is true that on various questions
arising under s. 583 difficulty had been felt and divergent views expressed in
the High Courts, there was however no doubt ever felt that the earlier section
had provided for a procedure by way of execution to obtain restitution. The
earlier section cannot, therefore, lend any support to the view that the
application under the new section has to be in execution.
Indeed the old section leads to the contrary
view for while it expressly provided that restitution would be by way of
execution, the present section deliberately omits reference to execution. This
departure in the terminology used, would tend to the view that it was intended
that the procedure under the new section would not be by way of execution.
With the difficulties actually felt under s.
583, we are not concerned in the discussion of the present case: they give no
assistance in the solution of the question now before us.
(1) 51 M.L.J. 161.
442 It was then said that if the application
for obtaining restitution under s. 144 was not in execution, then minors and
others would be deprived of the benefit of the provisions in ss. 6 and 7 of the
Limitation Act and the benefit of s. 15 of that Act would also not be available
in respect of such an application. It the language of s. 144 by itself clearly
indicates that the procedure is not to be by way of execution, as I think it
does, it would not be legitimate to interpret that section in a different way
because of the deprivation of the benefits under the provisions of another Act.
Furthermore, there will be many applications coming under Art. 181 of the
Limitation Act other than one under s. 144 of the Code where the benefits of
these sections of the Limitation Act would not be available. The provisions in
the Code of Civil Procedure which give rise to the other kinds of applications
covered by Art.
181 of the Limitation Act cannot all be
changed for conferring the benefits of ss. 6, 7 and 15 of that Act.
Clearly the intention of ss. 6, 7 and 15 of
the Limitation Act was that their benefit would be available only in cases
coming within their terms. I am, therefore, unable to agree that a
consideration of these sections of the Limitation Act is relevant for the
present enquiry. For all these reasons I am of opinion that the application
contemplated in s. 144 of the Code is not one in execution and, therefore, it is
not governed by Art. 182 of the Limitation Act dealing with execution but by
Art. 181. for it is not disputed that if Art. 182 did not apply, Art. 181
would. Now under Art. 181 the time starts to run from the date the right to
apply accrues and the period provided is three years. In the present case if
the right to apply accrued from the date of the appellate decree which gave
rise to the right of restitution, then the application for restitution would be
barred for the appellate decree was passed on July 13, 1949 and the application
had been filed on February 13, 1953.
But, as I have already said, after the
appellate decree had been drawn up it was amended on August 24, 1950 by
deleting the name of one of the appellants who had died. It was said for the respondents
that the right to apply even if Art. 181 applied, must be said to have accrued
when the amendment was made, for before then the present respondents could not
apply, and if time was computed from that date the application was not barred.
This contention however is without foundation for under s. 9 of the Limitation
Act once the time starts running, it does not stop to do so and there is no
dispute that the time began to run from the date of the appellate decree when
the right to apply first accrued.
443 It was lastly contended for the
respondents that time should start running from the date when this Court
revoked the leave to appeal granted under Art. 136. There is no authority to
support this contention.
In the result I would allow appeal No. 778 of
1964 that has arisen from Miscellaneous application No. 16 of 1953 and dismiss
the other appeal.
Subba Rao, J. These appeals by special leave
raise, inter alia, the question whether Art. 181 of the Limitation Act or Art.
182 thereof applies to an application under s. 144 of the Code of Civil
Procedure, 1908.
The facts may be briefly stated. Mohanbhai
filed Special Jurisdiction Suit No. 28 of 1943 in the Court of the Civil Judge,
Senior Division, Nadiad, for possession of the properties described in the
Schedule annexed to the plaint from respondents Nos. 1 to 5 and others.
Respondents 1 to 5 claimed to be in possession of the said properties as
trustees under a will executed by Mohanbhai's brother Chhabaji; the other
respondents are alleged to be the sevaks appointed by the respondents to
administer some of the trust properties. On November 30, 1945, the learned
Civil Judge decreed the suit. 3 of the trustees and the sevaks preferred an
appeal, being Appeal No. 317 of 1946, to the High Court of Bombay. On November
8, 1946, pending the appeal, Mohanbhai obtained possession of the suit
properties in execution of the decree of the trial Court; he also recovered a
sum of Rs. 1,290-3-0 from the trustees being costs awarded to him by the Trial
Court. Pending the appeal, Mohanbhai died and his son, the present appellant,
was brought on record in his place. On July 13, 1949, the High Court set aside
the decree of the Trial Court and dismissed the suit with costs. After the
appellate decree was drawn up, an application was filed by the decree-holders
for deleting the name of appellant No. 7 in the High Court on the ground of his
death. On August 24, 1950, the application was granted and the name of
appellant No. 7 therein was deleted. As the application filed by the appellant
in the High Court for a certificate to prefer an appeal to this Court was
dismissed on January 9, 1951, he filed an application in this Court for special
leave to appeal. On April 16, 1952, special leave to appeal was granted to the
appellant. But as he did not comply with the conditions imposed on him while
granting the special leave, this Court on November 24, 1952, rescinded the
special leave. Thereafter, the respondents herein filed 2 applications in the
Trial 444 Court, one was Special Darkhast No. 7 of 1953 filed on february 11,
1953, for recovering costs of the suit, the appeal, and the miscellaneous
applications, awarded to them against the appellant, and the other was
Miscellaneous Application No. 16 of 1953 filed on February 13, 1953, under S.
144 of the Code of Civil Procedure 'for the restitution of the estate of
Chhabaji which had come into the possession of the appellant and also for the
recovery of a sum of Rs. 1,290-3-0 paid by the trustees to Mohanbai in
execution of the decree of the Trial Court. The appellant contended that both
the applications were barred by limitation. The learned Civil Judge held that
cl. (2) of Art. 182 of the Limitation Act applied to the facts of the case and
the period of limitation would run from November 24, 1952, when this Court
revoked the order granting special leave, and, therefore, both the applications
having been filed within 3 years from that date, they were in time.
Alternatively. he held that as the decree was amended on August 24, 1950, when
the name of the deceased trustee was deleted, the period of limitation would
run from that date under cl. (4) of Art.
182 of the Limitation Act and, therefore, the
two applications would be in time. In that view, the Trial Court ordered
execution to proceed in the said two applications. The appellant preferred an
appeal to the High Court against the said order of the Trial Court. Before the
High Court learned counsel for the appellant contended that in regard to the
application for restitution Art. 181 of the Limitation Act would apply and,
therefore the said application not having been filed within 3 years of the
date-of the decree, was barred there under. Alternatively he contended that
even if Art. 182 of the Limitation Act applied, both the applications would be
barred by limitation under the said Article. The High Court held that both the
applications were governed by Art. 182 of the Limitation Act and that the
period of limitation would commence to run from the date the said decree was
amended on August 24, 1950, when the name of the deceased trustee was deleted
and that, as the said applications were filed within 3 years from the said
date, they were within time. In that view, it confirmed the order of the Trial
Court. Hence the appeals.
Dr. Barlingay, learned counsel for the
appellant, raised 'before us the following two points : (1) An application for
restitution under s. 144 of the Code of Civil Procedure is not an application
for the execution of a decree and, therefore, the said application is not
governed by Art. 182 of the Limitation Act, which provides for a period of
limitation in the case of execution of decrees, but by Art.
181 thereof, which is a residuary article of
limitation.
445 (2)As under Art. 181 of the Limitation
Act the period of limitation of 3 years starts from the date the right to apply
accrues, the said application for restitution was barred by limitation as the
respondents right to apply for restitution accrued to them when the appeal
filed by them in the High Court was allowed on July 13, 1949. He further argued
that the alleged amendment dated August 24, 1950, would not help the
respondents, as the 7th respondent (7th appellant in the High Court) died after
the said appeal was disposed of, that is after the respondents' right to apply
accrued; and that the second application viz., Special Darkhast No. 7 of 1953,
for recovery of costs was also barred by limitation under Art. 182 of the
limitation Act as it was filed beyond 3 vears from the date of the appellate
decree and that the amendment dated August 24, 1950, on which the respondents
relied to save the bar, was only an amendment of a clerical mistake and,
therefore, was not an amendment within the meaning of Art. 182(4) of the
Limitation Act.
Mr. 1. N. Shroff. learned counsel for the
respondents, on the other hand, contended that both the applications are
governed by Art. 182 of the Limitation Act and that they are saved both under
cl. (2) and cl. (4) of Art. 182 of the, Limitation Act. Alternatively he argued
that even if Art.
181 of the Limitation Act applied to the
application for restitution, it would be within time, as the respondents right
to apply accrued to them either on the date when the Supreme Court revoked the
special leave granted to the appellant, viz., November 24, 1952, or at any rate
on the date when the decree was amended, i.e., August 24, 1950.
We shall first take up the question of Imitation
in regard to an application for restitution. At the outset it would be
convenient to read the relevant provisions of the Code of Civil Procedure and
of the Limitation Act.
Section 144 of the Code of Civil Procedure (1
) Where and in so far as a decree is varied or reversed, the Court of first
instance shall, on the application of any party entitled to any benefit by way
of restitution or otherwise, cause such restitution to be made as will, so far
as may be, place the parties in the position which they would have occupied but
for such decree or such part thereof as has been varied or reversed; and for
this purpose, the Court may make any orders, including orders for the refund of
costs and for the payment of interest, damages, compensation and mesne profits,
446 which are properly consequential on such variation or reversal.
(2) No suit shall be instituted for the
purpose of obtaining any restitution or other relief which could be obtained by
application under sub-section (1).
The First Schedule to the Limitation Act
Period Time from which Description of application of period begins Limitation
to run Art. 181. Applications for When the right to which no period of apply
accrues.
limitation is provided Three elsewhere in
this schedule years or by section 48 of the Code of Civil Procedure, 1908.
Art. 182.For the execution Three years; 1.
The date of the of a decree or order of or where a decree or order, or any
Civil Court not certified provided for by article by copy of 2. Where there has
183 or by section 48 of the decree or been an appeal, the Code Civil Procedure,
orders has the date of the 1908. been registered final decree, six or order of
the, years. Appellate Court or the withdrawal of the appeal, or
3. Where there has been a review of Judgment date
of the decision passed on the review, or
4. Where the decree has been amended, the
date of amendment, or Under the said provisions if an application is one for
execution of a decree, Art 182 of the Limitation Act applies; but if it is not
an application for execution of a decree, but an application for which no
period of limitation is prescribed elsewhere, Art. 181 of the Limitation Act
applies. The short but difficult question is whether an application for
restitution under s. 144 of the Code of Civil Procedure is an application for
execution of a decree.
Section 144 of the Code of Civil Procedure
does not say in express terms that an application for restitution is not an
application for execution of a decree; nor does it say that it is one for
execution. So its nature can be ascertained only by construing the said
statutory provision. To execute a decree is to carry into effect the terms of
the decree;
and "to restitute" is to restore to
a 447 party the benefit which the other party has received under a decree
subsequently held to be wrong. There is no dichotomy between execution and
restitution, for there can be an executable decree for restitution. There is a
sharp cleavage of opinion among the various High Courts on the question whether
an application for restitution is one for execution of a decree or not. This
shows that different views can be taken on a fair construction of s. 144 of the
Code of Civil Procedure. In such a case the rule of construction of a statute
applicable is stated by Lord Coke, which is adopted by Maxwell, and it is found
in Maxwell on Interpretation of Statutes, 11th Edn. at p. 18 :
"To arrive at the real meaning, it is
always necessary to get an exact conception of the aim, scope and object of the
whole Act; to consider, according to Lord Coke : 1. What was the law before the
Act was passed; 2.
Whatwas the mischief or defect for which the
law had not provided; 3. What remedy Parliament has appointed; and 4. The
reason of the remedy." Let us therefore, approach the problem having
regard to the said rule of construction.
In Halsbury's Laws of England, 2nd Edn., Vol.
14, p.38, para. 69, the English law on the subject is stated thus:
"Where a wrongful or irregular execution
has been set aside, or where a judgment or order has been reversed after
execution thereon has taken place, restitution will be made to the successful
party. The order setting aside the execution or reversing the judgment or order
should provide for this;
and if it does, execution may issue upon it
in the ordinary course. If the order does not so provide, another order may be
made, or a writ called a writ of restitution be issued, commanding the judgment
creditor to restore the property or pay over the proceeds of sale." The
said passage indicates that under the English law the appellate order reversing
the original one may itself contain a direction for restitution or a court may
issue a separate order or a writ of restitution. In the Code of Civil
Procedure, 1859, there was no express provision for restitution. But the scope
of the doctrine of restitution was considered by the Judicial Committee in
Shama Purshad Roy Chowdery v. Hurro Purshad Roy Chowdery(l) wherein it stated
the principle thus (1) [1865] 10 M I.A.203,211.
448 "........ this rule of law rests, as
their Lordship apprehend, upon this ground, that the original decree or
judgment must be taken to be subsisting and valid until it has been reversed or
superseded by some ulterior proceeding. If it has been so reversed or
superseded, the money recovered under it ought certainly to be refunded, and,
as their Lordships conceive, is recoverable either by summary process, or by a
new suit or action.
The true question, therefore, in such cases
is, wether the decree or judgment under which the money ",as originally
recovered has been reversed or superseded; and applying this test to the
present case, their Lordships are oil opinion, that the decrees obtained by
Tara Pushad against Doogra Purshad were superseded by the Order of Her Majesty
in Council pronounced in the year 1849. It was plainly intended by that Order
that all the rights and liabilities of the parties should be dealt with under
it, and it would be in contravention of the Order to permit the decrees
obtained by Tara Purshad pending the appeal on which it was made to interfere
with this purpose." Though this passage relates to supersession of a decree
not in an appeal against that decree but by the Privy Council in a collateral
proceeding the Judicial Committee made it clear that the rights and liabilities
of parties should be dealt with only under the decree superseding the earlier
decree;
and it further restated the Englisg principle
that restitution could be made either by a summary process or by a new suit or
action. The Code of Civil Procedure, 1882, for the first time, introduced s.
583 providing for restitution. That section read :
"When a party entitled to any benefit,
by way of restitution or otherwise, under a decree passed in an appeal under
this chapter desires to obtain execution of the same, he shall apply to the
Court which passed the decree against which the appeal was preferred; and such
Court shall proceed to execute the decree passed in appeal, according to the
rules hereinbefore prescribed for the execution of decrees in suits."
Under this section any party entitled to any benefit under a decree passed in
an appeal could file an application in the Court which passed the decree
against which the appeal was preferred for the purpose of executing the
appellate decree.
The crucial words of 449 the section were
"benefit by way of restitution or otherwise under a decree". Did
those words mean that an appellate decree should expressly contain a direction
for restoration of any property taken by the respondent in execution of the
decree of the first Court, or did they include any benefit to which the
decree-holder would be entitled as a consequence of that decree of reversal It
was held that under that section a party would be entitled to restitution,
though restitution was not expressly provided for by the decree see Balvantrav
v. Sadrudin(1); and Rohini Singh v.
Hodding(2) A bare perusal of the section
indicates that an application for restitution under the said section was an
application for execution of an appellate decree. The Privy Council in Prag
Narain Kamakhia Singh(3) held that a separate suit would not lie and the relief
provided by the said section could be obtained only under s. 583 and s. 244 of
the Code of Civil Procedure in execution proceedings. An application made to
obtain restitution under a decree in accordance with s. 583 of the Code of
Civil Procedure, 1982, being a proceeding in execution of that decree, it was
held by all the High Courts, except one, that proceedings by way of restitution
were proceedings for execution within the meaning of Art. 179 of the Limitation
Act, 1877 : see Venkayya v. Raghavacharlu(4), Nand Ram v. Sita Ram(5), and
Jeddi Subraya Venkatesh Shanboah v. Ramrao Ramchandra Murdeshvar(6). There was
so conflict on the question whether mesne profit, for the period of
dispossession of the party could be recovered only under the said section or by
a regular suit.
The legal position under s. 583 of the Code
of Civil Procedure, 1882, may be stated thus : The benefit accrued to a party
under an appellate decree could be realized by him by executing the said decree
through the Court which passed the decree against which the appeal was
preferred. The appellate Court which set aside or modified the decree of the
first Court could give a direction providing for restitution. Even if it did
not expressly do so, it should certainly be implied as the appellate Court
could not have intended otherwise. The setting aside of the decree itself
raised the necessary implication that the parties should be restored to their
original position. Be that as it may, Courts understood the provision in that
light and held that such a decree was executable as if it contained such a
direction. Such an application was governed by Art. 179 of the Limitation Act,
1887, (1) [1889] I.L.R. 13 Bom. 485.
(2) [1894] I.L.R. 21 Cal. 34).
(3) [1939] I.L.R. 31 All. 551 (P.C).
(4) [1897] I.L.R. 2,3 Mad. 448.
(5) [1886] I.L.R. 8 All. 545.
(6) [1898] I.L.R. 22 Bom. 998.
450 corresponding to Art. 182 of the present
Act. No suit lay for the relief of restitution in respect of such a benefit,
the same being held by the Privy Council to be barred by s.
244 of the Code of Civil Procedure,
corresponding to the present S. 47 of the Code. But the terms of the section
were only confined to a party entitled to a benefit by way of restitution or
otherwise under a decree passed in an appeal and not under any other
proceeding.
With this background the Legislature in
passing the Code of Civil Procedure, 1908, introduced s. 144 therein. The said
section is more comprehensive than s. 583 of the Code of 1882. Section 144 of
the present Code does not create any right of restitution. As stated by the
Judicial Committee in Jai Berham v. Kedar Nath Marwari(l), "It is the duty
of the Court under s. 144 of the Civil Procedure Code to place the parties in
the position which they would have occupied, but for such decree or such part
thereof as has been varied or reversed. Nor indeed does this duty or
jurisdiction arise merely under the said section. It is inherent in the general
jurisdiction of the Court to act rightly and fairly according to the
circumstances towards all parties involved." The section, to avoid the
earlier conflict, prescribes the procedure, defines the powers of the Court and
expressly bars the maintainability of a suit in respect of a relief obtainable
under this section. The section does not either expressly or by necessary
implication change the nature of the proceedings. Its object is limited. It
seeks to avoid the conflict and to make the scope of the restitution clear and
unambiguous. It does not say that an application for restitution, which till
the new Procedure Code was enacted, was an application for execution, should be
treated as an original petition. Whether an application is one for execution of
a decree or is an original application depends upon the nature of the
application and the relief asked for.
When a party, who lost his property in
execution of a decree, seeks to recover the same by reason of the appellate
decree in his favour, he is not initiating any original proceeding, but he is
only concerned with the working out of the appellate decree in his favour. The
application flows from the appellate decree and is filed to implement or
enforce the same. He is entitled to the relief of restitution, because the
appellate decree enables him to obtain that relief, either expressly or by necessary
implication. He is (1) [1922] L.R. 49 I.A. 351, 355.
451 recovering the fruits of the appellate
decree. Prima facie therefore, having regard to the history of the section,
there is no reason why such an application shall not be treated as one for the
execution of the appellate decree.
Now let us consider the arguments pressed on
us for taking the contrary view. It is said that when an appellate Court makes
a decree setting aside the decree of the first Court without providing for
restitution, there is no executable decree for restitution. But this argument
concedes that if the appellate Court provides for restitution, an application
for restitution will be an application for execution of a decree. Even if it is
an execution application, the procedure to be followed and the power of the
Court to order a restitution would be confined to s. 144 of the Code.
Therefore, an execution application for
restitution would be governed by s. 144 of the Code of Civil Procedure. If the
argument of the learned counsel for the appellant be accepted, it will lead to
inconsistent positions depending upon whether the appellate decree gave a
direction for restitution or it did not. If it did not, the application would
become an original petition; if it did, it would be an execution application.
This inconsistency can be avoided, if such a direction for restitution be
implied in every appellate decree setting aside or modifying the decree of the
lower Court, even if it does not expressly give such a direction.
The second objection is that if the view of
the High Court is correct, s. 144 would become redundant, as s. 47 of the Code
covers the same field. Even under the Act of 1882 there were two sections,
namely, s. 583, corresponding, to some extent, to s. 144 of the present Code,
and s. 244, corresponding to s. 47 of the present Code. Even so, there was a
conflict under the old Code as regards the scope of restitution and also as
regards the question of the bar of a suit in a civil Court. Section 144 was
enacted to avoid the conflict, to clarify the doubts, and to define the powers
of the Court. Sub-section (2) of s. 144 of the Code of Civil Procedure, 1908,
was enacted to obviate any further debate on the question of bar of a suit.
The next criticism is that while execution
proceedings are confined to Part 11 and Order XXI of the Code of Civil
Procedure, the Legislature, presumably to make it clear that an application for
restitution is not an execution application, placed it in Part XI thereof under
the heading "Miscellaneous". The placing of a particular section in a
Part of the Code dealing with a specific subject-matter may support the
contention that section deals 452 with a part of the subject dealt with by that
Part, but that cannot be said when a particular section appears under a Part
dealing with miscellaneous matters. The Part under the heading
"Miscellaneous" indicates that the sections in that Part cannot be
allocated wholly to a Part dealing with a specific subject, for the reason that
the sections entirely fall outside the other Parts or for the reason that they
cannot entirely fail within a particular Part. They may have a wide scope
cutting across different parts dealing with specific subjects. Section 144 may
have been placed in Part Ill.. as relief of restitution may cover cases other
than those arising in execution of a decree of an appellate Court setting,
aside the decree of a Court under appeal.
Indeed there is a conflict on the question
whether 144 applies to an order setting aside an ex-parte decree, to a decree
setting aside another decree in a collateral proceeding and to dependent
decrees etc. That apart, even under the earlier Code, s. 583 was not placed in
the chapter dealing with "execution", but only in the chapter dealing
with appeals. Indeed, some of the sections in Part XI partly deal with
execution a matters : see ss. 132(2), 135(3), 135A, etc. The fact that a
section has been placed in a particular Part for convenience of arrangement
cannot affect the question if in reality the application is one for execution :
at the most it is only one of the circumstances relevant to the present
enquiry; it is lot decisive of the question one way or other.
Nor can we accept the argument that if an
application under s. 144 of the Code of Civil Procedure is an application for
execution, it will be inconsistent with s. 38 of the Code. Under s. 144 an
application can be filed only before the Court of the first instance whereas
under s. 38 a decree may be executed either by the Court which passed it or by
the Court to which it is sent for execution. But under s. 37 the expression
"Court which passed a decree", or words to that effect, shall in
relation to the execution of decrees, unless there is anything repugnant in the
subject or context, be deemed to include, (a) where the decree to be executed
has been passed in the exercise of appellate jurisdiction, the Court of first
instance, and (b) where the Court of first instance has ceased to exist or to
have jurisdiction to execute it, the Court, which, if the suit wherein the
decree was passed was instituted at the time of making the application for the
execution of the decree, would have jurisdiction to try such suit. It is,
therefore, clear that the expression "Court which passed a decree"
includes the Court of first instance where the decree to be executed has been
passed in the exercise of appellate jurisdiction. A combined reading of 453 ss.
37 and 38 indicates that the Court of first instance is the Court which passed
the decree within the meaning of s 38, and, therefore, an application for
execution of the decree can be filed therein. If the Court of first Instance is
deemed to be the Court which passed the decree, we do not see any difficulty in
holding that the ,aid Court can transfer the decree under s. 39 of the Code.
The contention that the determination of a
question under s. 144 of the Code is included in the definition of a decree
under s. 2(2) of the Code has also no relevance to the question before us. The
said definition takes in both an order made under s. 47 and that made under s.
144 of the Code. The said two sections are included for the purpose of giving a
right of appeal. If an execution application to which s. 47 applies does not
cease to be an execution application by reason of the section being included in
the definition of "decree", an execution application under s. 144
cannot likewise cease to be one for the reason that the said section is
included in the definition of "decree".
If the argument of the appellant be accepted,
it will lead to many anomalies. If a respondent in the appeal did not execute
the decree in his favour and the appeal was dismissed, the period of limitation
for executing the decree would be governed by Art. 182 of the Limitation Act,
whereas if he executed the decree and had illegally taken the property from the
appellant, though the appeal was allowed, the period of Limitation for
restitution would be governed by Art. 181 of the Limitation Act. If the
appellate Court gave a direction in the decree for restitution, the period of
limitation for executing the decree would be -governed by Art. 182 of the
Limitation Act, whereas if no such direction was given, it would be governed by
Art. 181 thereof. Where an appellant was a minor or under a disability he could
not take advantage of the periods of extension provided under ss. 6 and 7 of
the Limitation Act, though the appeal was allowed in his favour, by filing an
application for restitution; whereas if the appeal was dismissed, the
respondent, if he happened to be a minor or under a disability, would get the
extension for executing the decree. If an application for restitution was not
an application for execution of a decree and if the restitution was stayed by a
second appellate Court, under s. 15 of the Limitation Act the time during which
the party was prevented from applying for restitution could not be excluded,
even if ultimately the appeal was dismissed, with the result the application
for restitution would get barred. The construction suggested by the learned counsel
for the appellant will lead to 454 the said anomalies. The existence of
anomalies may have no relevance when a provision of a statute is clear and
unambiguous, but it will certainly have a bearing when the section is
ambiguous.
As we have already indicated, there are
strong currents of judicial opinion expressing conflicting views on the
construction of S. 144 of the Code of Civil Procedure. The Madras High Court in
Somasundaram v. Chokkalingam(1) and Chittoori Venkatarao v. Chekka
Suryanarayana (2) , the Bombay High Court in Kurgodigouda'v. Ningangouda (8)
and Hamidalli v. Ahmedalli (4) , the Patna High Court in Bhaunath v.
Kedarnath(5), the Chief Court of Oudh in Chandika v. Bital(6), the Rangoon High
Court in A.M.K.C.T. Muthuukarauppan Chettiar v. Annamalai(7), the High Court of
Travancore-Cochin in Kochu Vareed v. Mariyam(8), and the Madhya Pradesh High
Court in Choudhary Hariram v. Pooran Singh(9) held that an application under s.
144 of the Code of Civil Procedure was an application for execution of a
decree, while it had been held by the High Court of Allahabad in Parmeshwar
Singh v. Sitaldin Dube(") and other cases, the Calcutta High Court in
Sarojebhushan v. Debendranath(11) and Hari Mohan Dalal v. Parmeshwar Shau(12)
and other cases, the Nagpur High Court in Khwaja Allawali Kesarimal(13), and
the Punjab High Court in Mela Ram v. Dharam Chand and Amrit Lal(14) that it was
not an application for execution. We have gone though the judgments carefully
and we have derived great assistance from them. If we are not dealing with each
of the cases specifically, it is only because we have practically dealt with
all the views. We realize that the opposite construction for which the
appellant contended is also a possible one; but it ignores the history of the
legislation and the anomalies that it introduces. On a procedural matter
pertaining to execution when a section yields to two conflicting constructions,
the Court shall adopt a construction which maintains rather than disturbs the
equilibrium in the field of execution. The historical background of s. 144 of
the Code of Civil Procedure, the acceptance of the legal position that an
application for restitution is one for execution of a decree by a number of
High Courts, the inevitable adoption of the said (1) [1916] I.L.R. 40 Mad. 780.
(2) I.L.R. 1943 Mad. 411.
(3) [1917] I.L.R. 41 Bom. 625.
(4) [1920] I.L.R. 45 Bom. 1117.
(5) [1934] I.L.R. 13 Pat. 411 (F.B.).
(6) [1930] I.L.R. 6 Luck. 448.
(7) [1933] I.L.R. 11 Rang. 275.
(8) A.I.R. 1952 T.C. 40.
(9) A.I.R. 1962 M.P. 295.
(10) [1935] I.L.R. 57 All. 26 (F.B.).
(11) [1932] I.L.R. 59 Cal. 337.
(12) [1929] I.L.R 56 Cal. 61.
(13) I.L.R. 1947 Nag. 176.
(14) [1958] I.L.R. Xi (1) Punj. 407(F.B.) 455
legal position by innumerable successful appellants within the jurisdiction of
the said High Courts, the possible deleterious impact of a contrary view on
such appellants, while there will be no such effect on similar appellants
within the jurisdiction of the High Courts which have taken a contrary view, also
persuade us to accept the construction that the application for restitution is
one for execution of a decree. We, therefore, hold on a fair construction of
the provisions of s. 144 of the Code of Civil Procedure that an application for
restitution is an application for execution of a decree.
Coming to the second application, namely,
Special Darkhast No. 7 of 1953, filed for recovery of costs, undoubtedly it is
governed by Art. 182 of the Limitation Act. But the appellant contends that the
High Court wrongly held that the said application being within 3 years from the
date of the amended decree, namely, August 24, 1950, it was within time.
Under cl. (4) of Art. 182 of the Limitation
Act an application for execution of a decree can be filed within 3 years, where
the decree has been amended, from the date of the amendment. Dr. Barlingay
contended that the amendment dated August 24, 1950, was only analogous to a
correction of a clerical mistake and. was not an amendment affecting, the
rights of the parties and, therefore, it was not an amendment within the
meaning of Art. 182(4) of the Limitation Act. It is not necessary to decide in
this case whether the expression "amendment" in the said clause takes
in an amendment of a clerical error, for we are satisfied that on the facts of
the case the amendment was a substantial one and that it did affect the rights
of the parties under the decree. It may be recalled that there were 7
appellants in the High Court and the appellate Court set aside the decree
passed by the Trial Court against them.
By the amendment dated August 24, 1950, the
name of the 7th appellant was struck out from the decree. The result of the
amendment was that while the original appellate decree was in favour of the 7
appellants, the amended appellate decree was only in favour of 6 appellants. To
that extent the rights of the parties were modified by the amended decree.
It is, therefore, clearly a case where the
decree has been amended within the meaning of cl. (4) of Art. 182 of the
Limitation Act.
If so, the application for execution as well
as that for restitution having been filed within 3 years from. that date, both
were Sup./65-13 456 clearly within time.
In the result, the appeals fail and are
dismissed with cost.
ORDER In accordance with the Opinion of the
Majority the Appeal is dismissed with costs.
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